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Gender reassignment: paragraph 25

Effect

709.     Paragraph 25 contains an exception to the general prohibition of gender reassignment discrimination in relation to the provision of separate- and single-sex services. Such treatment by a provider has to be objectively justified.

Background

710.     This paragraph replaces a similar provision in the Sex Discrimination Act 1975.

Example

  • A group counselling session is provided for female victims of sexual assault. The organisers do not allow transsexual people to attend as they judge that the clients who attend the group session are unlikely to do so if a male-to-female transsexual person was also there. This would be lawful.

Services relating to religion: paragraph 26

Effect

711.     Paragraph 26 contains an exception to the general prohibition of sex discrimination to allow ministers of religion to provide separate and single-sex services.

712.     The minister can provide such services so long as this is done for religious purposes, at a place occupied or used for those purposes and it is either necessary either to comply with the tenets of the religion or for the purpose of avoiding conflict with the strongly held religious views of a significant number of the religion’s followers. This does not apply to acts of worship (which are not themselves “services” within the meaning of the Bill so no exception is required) but to ancillary issues such as separate seating of men and women.

Background

713.     This paragraph replaces a similar provision in the Sex Discrimination Act 1975. The requirement regarding avoiding conflict with the religion’s followers has been altered in order to give consistency within the Bill and some explanatory provisions have been added for the same reason.

Example

  • A synagogue has separate seating for men and women at a reception following a religious service.

  • Services generally provided only for persons who share a protected characteristic: paragraph 27

Effect

714.     Paragraph 27 provides that a service provider does not breach the requirement in clause 28 not to discriminate in the provision of a service if he or she supplies the service in such a way that it is commonly only used by people with a particular protected characteristic (for example, women or people of Afro-Caribbean descent) and he or she continues to provide that service in that way. If it is impracticable to provide the service to someone who does not share that particular characteristic, a service provider can refuse to provide the service to that person.

Background

715.     This is designed to replicate the effect of provisions currently contained in the Sex Discrimination Act 1975 and the Equality Act 2006, and extends the clarification they provide across all other protected characteristics for the first time.

Examples

  • A hairdresser who provides Afro-Caribbean hairdressing services would not be required to provide European hair dressing services as well. However, if a white English person wanted his hair braided and there was no technical difficulty to prevent that, it would be unlawful for the hairdresser to refuse to provide her services to him.

  • A butcher who sells halal meat is not required also to sell non-halal meat or kosher meat. However, if a non-Muslim customer wanted to purchase the meat that was on offer, he could not refuse to sell it to her.

Part 7: Transport

Application to disability: paragraph 28

Effect

716.     Paragraph 28 applies the exceptions listed in paragraphs 29 and 30 in relation to disability, thereby stipulating the extent to which providers of transport services are bound by the disability provisions of the Bill.

Background

717.     These provisions replicate the effect of existing provisions in the Disability Discrimination Act 1995.

Transport by air: paragraph 29

Effect

718.     Paragraph 29(1) provides an exception to the prohibition against discrimination, so far as it relates to disability, in respect of the provision of services in connection with air transport.

719.     Paragraph 29(2) ensures that there is no duplication where there would otherwise be an overlap between the disability provisions of the Bill and Regulation (EC) No1107/2006 of the European Parliament and of the Council of 5 July 2006 concerning the rights of disabled persons and persons with reduced mobility when travelling by air (“EC Regulation 1107/2006”).

Background

720.     These provisions replicate the effect of existing provisions in the Disability Discrimination Act 1995.

Examples

  • An airline is required to make reasonable adjustments to its booking services to ensure that they are accessible to disabled people. It is not required to make any structural adjustments to the cabin environment inside an aircraft by reason of the derogation in Article 4(1)(a) of EC Regulation 1107/2006.

  • An airport owner charges a disabled person for wheelchair assistance to board an aircraft. This would be a breach of EC Regulation 1107/2006, so clause 28 of the Bill would not apply. However, if the same airport owner fails to make adjustments to allow disabled people to access car parks at the airport, this would fall within scope of the Bill.

Transport by land: paragraph 30

Effect

721.     Paragraph 30 provides an exception from clause 28 for all services of transporting people by land, except those listed. The definitions of the vehicles listed are contained in Paragraph 4 of Schedule 2.

Background

722.     This paragraph replicates the effect of existing provisions in the Disability Discrimination Act 1995.

Example

  • A train operating company is required to provide a reasonable alternative when a disabled person is unable to access the buffet car due to their disability.

Part 8: Supplementary

Power to amend: paragraph 31

Effect

723.     Paragraph 31 contains a power for a Minister of the Crown to vary, remove or add to the exceptions in this Schedule relating to public functions in respect of disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex and sexual orientation. It allows a Minister of the Crown also to add, vary or remove the exceptions that relate to the provision of services but only in relation to disability, religion or belief and sexual orientation.

724.     In relation to transport by air, a Minister of the Crown can also vary, remove or add exceptions in relation to the provision of services and the exercise of public functions for disability only. For these purposes, it does not matter where the transport in fact takes place.

725.     The Minister must consult the Equality and Human Rights Commission before exercising the power under this paragraph.

Background

726.     This reflects the substance of powers contained in current legislation.

Schedule 4: Premises: reasonable adjustments

Effect

727.     This Schedule explains how the duty to make reasonable adjustments in clause 20 applies to a controller of “let” premises or of premises “to let” and to the commonhold association where a disabled tenant (or prospective tenant) or unitholder in commonhold land or the disabled person legally occupying the property is placed at a substantial disadvantage, so that the disabled person can enjoy the premises or make use of them. It stipulates that the duty does not require the removal or alteration of a physical feature, and makes clear what are not “physical features” for these purposes. The duty only applies if a request for an adjustment is made by or on behalf of a disabled person.

728.     This Schedule also explains how the duty to make reasonable adjustments in clause 20 applies in relation to “common parts”, for example an entrance hall in a block of flats. These provisions relate specifically to physical features and set out the process that must be followed by the person responsible for the common parts (for example in England and Wales either a landlord or, in the case of commonhold land, the commonhold association and in a tenement in Scotland, the owner of the common parts) if a disabled tenant or someone on their behalf requests an adjustment. This includes a consultation process with others affected which must be carried out within a reasonable period of the request being made. If the responsible person decides to make an adjustment to avoid the disadvantage to the disabled person, a written agreement must be entered into between them setting out their rights and responsibilities.

729.     The Schedule also makes it unlawful for a controller or responsible person to victimise a disabled tenant because costs have been incurred in making a reasonable adjustment.

Background

730.     This Schedule partly replaces similar provisions in the Disability Discrimination Act 1995. However, the Bill introduces a new requirement for disability related alterations to the physical features of the common parts of let residential premises or premises owned on a commonhold basis or tenements in Scotland.

Examples

  • A landlord has a normal practice of notifying all tenants of any rent arrears in writing with a follow-up visit if the arrears are not reduced. A disabled person explains to the landlord that he cannot read standard English so would not be aware that he was in arrears. He asks to be notified of any arrears in person or by telephone. The landlord arranges to visit or telephone the learning disabled person to explain when he has any arrears of rent. This personal contact may be a reasonable adjustment for the landlord to make. .

  • A landlord is asked by a disabled tenant to install a ramp to give her easier access to the communal entrance door. The landlord must consult all people he thinks would be affected by the ramp and, if he believes that it is reasonable to provide it, he must enter into a written agreement with the disabled person setting out matters such as responsibility for payment for the ramp. The landlord can insist the tenant pays for the cost of making the alteration.

Schedule 5: Premises: exceptions

Effect

731.     This Schedule sets out limited exceptions to the prohibitions on discrimination and harassment contained in the premises provisions in Part 4 of the Bill.

732.     The first exception applies where a person who owns and lives in a property disposes of all or part of it privately (for example by selling, letting or subletting) without using the services of an estate agent, or publishing an advertisement.

733.     This exception does not apply to race discrimination in disposing of premises. It only applies to discrimination in relation to permission to dispose of premises where it is based on religion or belief or sexual orientation.

734.     This exception also exempts a controller of leasehold premises (as defined in clause 35) from the duty to make reasonable adjustments provided that:

  • where the premises have been let, the premises are (or have been) the controller’s main or only home and he has not used the services of a manager since letting the premises (paragraph 2(1));

  • where the premises are to let, they are the controller’s main or only home and he has not used the service of an estate agent for letting purposes (paragraph 2(3)).

735.     The second exception applies to disposal, management or occupation of part of small premises. It applies where a person engaging in the conduct in question, or a relative of that person, lives in another part of the premises and the premises include facilities shared with other people who are not part of their household.

736.     This exception does not apply to race discrimination when disposing of or giving permission for the disposal of premises, or in the management of premises.

737.     The small premises exception also exempts a controller of premises or a person responsible in relation to common parts (as defined in clause 35) from the duty to make reasonable adjustments where the premises are small, where that person or a relative of that person lives in one part of the premises and residents who are not members of that person’s household live in another part of the premises. The definitions of “small premises” and “relative” in paragraph 3 apply.

738.     Paragraph 5 contains a power for a Minister of the Crown to amend or repeal the small premises exception.

Background

739.     This Schedule replaces similar provisions in current legislation.

Examples

  • A homeowner makes it known that she is preparing to sell her flat privately. A work colleague expresses an interest in buying it but she refuses to sell it to him because he is black. That refusal would not be covered by this exception and so would be unlawful.

  • A homeowner makes it known socially that he wants to sell his house privately. Various prospective buyers come forward and the homeowner opts to sell it to a fellow Christian. The other prospective buyers cannot claim that they were discriminated against because the homeowner’s actions were covered by this exception.

  • A single woman owns a large house in London and lives on the top floor, although the bathroom and toilet facilities are on the first floor. The ground floor is unoccupied and she decides to take in a lodger, sharing the bathroom and toilet facilities. Various prospective tenants apply but she chooses only to let the ground floor to another woman. This would be permissible under this exception.

  • A Jewish family own a large house but only live in part of it. They decide to let out an unoccupied floor but any new tenant will have to share kitchen and cooking facilities. The family choose only to let the unoccupied floor to practising Jews as they are concerned that otherwise their facilities for keeping their food kosher may be compromised. This would be permissible under this exception.

Schedule 6: Office-holders: excluded offices

Effect

740.     This Schedule provides that an office or post is not treated as a personal or public office in the Bill in circumstances where the office-holder is protected by one of the other forms of protection given in Part 5 of the Bill - employment, contract work, employment services (as they relate to work experience), partnerships, limited liability partnerships, barristers and advocates. It also provides that political offices, life peerages, and any other dignity or honour conferred by the Crown are not personal or public offices for the purposes of the Bill.

Background

741.     The Schedule replaces similar provisions in current legislation. The conferral of honours and dignities is treated as a public function for the purposes of the Bill, and the specific provisions formerly found in the Race Relations Act 1976 alone are not replicated. Public bodies’ activities in relation to honours and dignities will also be subject to the public sector equality duty.

Example

  • A person appointed as a commissioner of a public body may be both an employee and an office holder. Such a person will be protected under the employment provisions in clause 37 as against his employer, and under the office holder provisions in clauses 47 or 48 and 49 as against the person who appointed him and/or any relevant person.

Schedule 7: Equality of terms: exceptions

Part 1: Terms of work

Compliance with laws regulating employment of women, etc.

742.     Part 1 of this Schedule sets out exceptions to the operation of a sex equality clause or a maternity equality clause. It provides that such clauses will not have effect on any terms of employment, appointment or service that are governed by laws regulating employment of women. A few of these remain, mainly for health and safety purposes. A sex equality clause will also have no effect on terms giving special treatment to women in connection with pregnancy or childbirth.

Background

743.     This Schedule replaces similar provisions in the Equal Pay Act 1970.

Part 2: Occupational pension schemes

Effect

744.     Part 2 of this Schedule sets out certain circumstances where a sex equality rule does not have effect in relation to occupational pension schemes.

745.     It allows payments of different amounts for comparable men and women, in prescribed circumstances, if the difference is only because of differences in retirement benefits to which men and women are entitled. It permits payment of different amounts where those differences result from the application of prescribed actuarial factors to the calculation of employer’s contributions to an occupational pension scheme. It also permits payment of different amounts where actuarial factors are applied to the determination of certain prescribed benefits.

746.     It also contains a regulation making power to vary or add to these circumstances. The regulations may make provision for past periods, but not for pensionable service before 17 May 1990.

Background

747.     This replaces similar provisions in section 64 of the Pensions Act 1995.

Schedule 8: Work: reasonable adjustments

Effect

748.     This Schedule explains how the duty to make reasonable adjustments in clause 20 applies to an employer, or other persons under Part 5 of the Bill. It sets out the three requirements of the duty which apply where an “interested” disabled employee or job applicant is placed at a substantial disadvantage compared to non-disabled employees or applicants. As the duty is owed to an “interested” disabled employee or job applicant, it is not an anticipatory duty which means that an employer is not required to anticipate the needs of potential disabled employees or job applicants and make reasonable adjustments in advance of their having an actual disabled employee or job applicant

749.     The tables set out who is an interested disabled person in relation to different categories of “relevant matters” and the circumstances in which the duty applies in each case. These tables capture how the duty applies in a number of areas related to work, for example to qualifications bodies and to trade organisations and there is a regulation making power to enable further detail to be set out about how the duty applies to local authorities in respect of disabled members.

750.     The Schedule also sets out the circumstances in which lack of knowledge of the person’s disability or that a disabled person may be an applicant for a job means that the duty does not apply.

Background

751.     This Schedule replaces similar provisions in the Disability Discrimination Act 1995. The Schedule provides greater clarity than in the Disability Discrimination Act that a duty to make reasonable adjustments includes a requirement to provide an auxiliary aid if this would overcome the substantial disadvantage to the disabled person.

Examples

  • An employer provides specially-adapted furniture for a new employee with restricted movement in his upper limbs. This is likely to be a reasonable adjustment for the employer to make.

  • A large employer is recruiting for posts which routinely attract a high number of applications. He arranges for large print application forms to be available for any visually-impaired people applying for a job. This is likely to be a reasonable adjustment for the employer to make.

Schedule 9: Work: exceptions

752.     The power in paragraph 16 allows a Minister of the Crown to specify descriptions of practices, actions or decisions relating to age in respect of contributions by employers to personal pension schemes that an employer may maintain or use without breaching a non-discrimination rule.

Background

753.     Exceptions to the non-discrimination rule in relation to age in respect of employer contributions to personal pension schemes are currently set out at Schedule 2 to the Employment Equality (Age) Regulations 2006 (S.I. 2006/1031).

Part 1: Occupational requirements

754.     Part 1 of this Schedule concerns requirements for particular kinds of work.

General: paragraph 1

Effect

755.     This paragraph provides a general exception to what would otherwise be unlawful direct discrimination in relation to work. The exception applies where being of a particular sex, race, disability, religion or belief, sexual orientation or age - or not being a transsexual person, married or a civil partner - is a requirement for the work, and the person whom it is applied to does not meet it (or, except in the case of sex, does not meet it to the reasonable satisfaction of the person who applied it). The requirement must be crucial to the post, and not merely one of several important factors. It also must not be a sham or pretext. In addition, applying the requirement must be proportionate so as to achieve a legitimate aim.

756.     The exception can be used by employers, principals (as defined in clause 39) in relation to contract work, partners, members of Limited Liability Partnership (LLPs) and those with the power to appoint or remove office-holders, or to recommend an appointment to a public office.

Background

757.     This paragraph replicates the effect of exceptions for occupational requirements in current discrimination legislation, and creates new exceptions in relation to disability and to replace the existing exceptions for occupational qualifications in relation to sex, gender reassignment, colour and nationality. It differs from the existing exceptions for occupational requirements in that it makes clear that the requirement must pursue a legitimate aim and that the burden of showing that the exception applies rests on those seeking to rely on it.

Examples

  • The need for authenticity or realism might require someone of a particular race, sex or age for acting roles (for example, a black man to play the part of Othello) or modelling jobs.

  • Considerations of privacy or decency might require a public changing room or lavatory attendant to be of the same sex as those using the facilities.

  • An organisation for deaf people might legitimately employ a deaf person who uses British Sign Language to work as a counsellor to other deaf people whose first or preferred language is BSL.

  • Unemployed Muslim women might not take advantage of the services of an outreach worker to help them find employment if they were provided by a man.

  • A counsellor working with victims of rape might have to be a woman and not a transsexual person, even if she has a gender recognition certificate, in order to avoid causing them further distress.

Religious requirements relating to sex, marriage etc., sexual orientation: paragraph 2

Effect

758.     Where employment is for the purposes of an organised religion, this paragraph allows the employer to apply a requirement to be of a particular sex, not to be a transsexual person or make a requirement related to the employee’s marriage, civil partnership or sexual orientation, but only if -

  • appointing a person who meets the requirement in question is a proportionate way of complying with the doctrines of the religion; or,

  • because of the nature or context of the employment, employing a person who meets the requirement is a proportionate way of avoiding conflict with a significant number of the religion’s followers’ strongly held religious convictions.

759.     The requirement must be crucial to the post, and not merely one of several important factors. It also must not be a sham or pretext.

760.     Employment can only be classified as being for the purposes of an organised religion if the employment wholly or mainly involves promoting the religion, or explaining its doctrines, or leading or assisting in the observance of religious practices or ceremonies.

761.     The requirement can also be applied by a qualifications body in relation to a relevant qualification (within the meaning of clause 52), if the qualification is for employment for the purposes of an organised religion as defined above and either of the criteria described in paragraph 757 above are met.

 
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Prepared: 19 November 2009